53 / 350
SOVEREIGNTY AND OWNERSHIP IN RELATION TO OUTER SPACE …
3. Ownership in outer space and the prohibition of appropriation
of space and celestial bodies
Private property
in the sense of civil law can only be understood in the
context of
system of laws of a state which guaranties its existence.
11
The pre-condition for ownership
and its exercise is
state sovereignty
. In Black’s legal dictionary, property is defined in
the narrower legal sense as “set of rights guaranteed and protected by the state”.
12
This
means that the existence of property rights is linked to the sovereignty of the state
and can only be exercised within the frame of the power of a particular state. This
state sets the rules for obtaining property, including its legal protection, within the
frame of its power. Claiming property without the corresponding guarantees of the
state will be legally irrelevant and therefore legally unenforceable.
When defining the issue of property it is necessary first to state that it is
forbidden
13
to claim territorial sovereignty
in outer space according to Article II of the Space Treaty
of 1967. According to this article states cannot claim outer space, including the
moon and other celestial bodies, which are not subject to national appropriation by
claim of sovereignty, by means of use or occupation, or by any other means.
The prohibition of
appropriation by a state
includes any
formal claim
on territorial
sovereignty over
o
uter space and celestial bodies. The prohibition of appropriation
therefore prevents the foundation of territorial sovereignty in the sense of international
civil law, including the right to dispose of these spaces. The prohibition of
appropriation “by use” or “by any other means” includes forms of exclusive legal rule
which are not covered by the concept of sovereignty.
14
Freedom of the outer space in Article I of the Space Treaty and the prohibition
of appropriation of space in Article II are considered
customary rules
15
of the
international law. Lyall
16
also considers Article II of the Space Treaty an expression
of customary international law. These rules are therefore binding even for states that
are not state-parties of the Space Treaty. It also means that even a state-party to the
Space Treaty that decided to withdraw from the Treaty in the sense of Article XVI of
the Space Treaty continues to be bound by it.
Considering the prohibition of appropriation of outer space, a question may
arise whether
the prohibition of appropriation
includes, apart from the
prohibition
of appropriation by a state,
also the prohibition of the exercising of private property
rights
. Considerations about raising private property claims,
namely in relation to the
11
See Ondřej, J.
Právní režimy mezinárodních prostorů
[The Law of International Spaces]. Plzeň :
Vydavatelství a nakladatelství Aleš Čeněk, 2004, p. 35.
12
See Black’s Law Dictionary, Victoria Publishing, p. 1131.
13
See Ondřej, J.
Právní režimy mezinárodních prostorů
[The Law of International Spaces]. Plzeň :
Vydavatelství a nakladatelství Aleš Čeněk, 2004, p. 35.
14
See Lachs, M.
The Law of Outer Space
. Leyden: Sijthoff Leyden, 1972, p. 43.
15
See He. Quizhi, The Outer space treaty in perspective,
Journal of Space Law
, Vol. 25, No. 2, 1997,
pp. 95-97.
16
See Lyall, F. On the Moon.
Journal of Space Law
, 1998, No. 2, pp. 130-131.